Commitment to court of justice a historic step

IRELAND’S RECENT declaration accepting the compulsory jurisdiction of the International Court of Justice (ICJ) is a significant development, affirming the State’s commitment to the rule of law in international affairs.

The ICJ, known as the World Court, is the United Nations’ principal judicial organ. It gives advisory opinions on questions of international law at the request of UN organs, such as the General Assembly, most recently on the legality of Kosovo’s unilateral declaration of independence.

It is also the only court with general jurisdiction to resolve disputes between states under international law.

However, the court’s jurisdiction is voluntary and its role is limited by the extent to which states accept its compulsory jurisdiction, by making a declaration under Article 36(2) of the court’s statute, the optional clause. This is what Ireland has done by lodging its declaration with the UN secretary general on December 15th last.

International courts have become an increasingly common phenomenon over the past century, dealing with matters as diverse as human rights, trade and the law of the sea.

However, when the court’s predecessor was established under the Covenant of the League of Nations, it represented a significant advance in international relations. In the shadow of the first World War, states for the first time entrusted the settlement of their disputes to an independent judicial tribunal ruling in accordance with international law.

The fundamental compromise underlying the court’s establishment was that states were free to choose whether to accept its jurisdiction as compulsory. To date, just over a third of UN members have accepted the court’s compulsory jurisdiction.

By taking this step, Ireland has gained the right to refer to the court legal disputes with any other state which has made a similar declaration. It has also accepted the right of such states to take a case against it. Ireland’s only reservation relates to disputes with the United Kingdom in regard to Northern Ireland.

As a small neutral country with a history of few international disputes, Ireland is unlikely to be party to many cases before the court. Indeed, in many fields, most importantly under the EU treaties, the State has, as is its entitlement, committed to other systems of dispute settlement.

Nevertheless, the nature of the declaration is such that the matter is no longer entirely in the State’s own hands.

As Ireland’s international footprint expands, it is impossible to exclude that it could come before the court, whether as an applicant or respondent.

Regardless of whether it is involved in a case before the court, Ireland’s declaration is significant.

For the court and for the UN, each declaration represents a further shift towards realising the goal of peaceful settlement of disputes under international law.

For this State, the declaration also has historical resonance.

In 1929, the fledging Irish Free State made a similar declaration accepting the compulsory jurisdiction of the court’s predecessor. In contrast to the declarations of the UK and the other dominions that excluded disputes between Commonwealth members from the court’s jurisdiction, Ireland took a decidedly independent stance and made its declaration without any such reservation.

It did so at a time when its status as a fully independent State was still a matter of controversy.

Against this background, the 1937 Constitution, in article 29.2, affirmed Ireland’s adherence to “the principle of the pacific settlement of international disputes by international arbitration or judicial determination”.

However, because Ireland was not an original member of the UN, its declaration lapsed in 1945. When the State joined the UN 10 years later, it made no declaration under the optional clause.

Ireland has since been actively involved with the work of many international courts.

In 1996, the rainbow coalition’s White Paper on Foreign Policy announced that it would give urgent consideration to making a declaration under the optional clause. However, it was only in April 2011, shortly after the Fine Gael-Labour government took power and ahead of then president Mary McAleese’s visit to the court during her state visit to the Netherlands, that Minister for Foreign Affairs Eamon Gilmore announced Ireland’s intention to accept the compulsory jurisdiction of the court before the end of 2011, as it has now done.

In the wake of the EU-IMF bailout, there has been much talk, and with some justification, of Ireland’s diminished sovereignty.

Yet, in the diplomatic sphere, Ireland has taken some significant steps towards reaffirming its sovereignty and rebuilding its international reputation.

Ireland’s current chairing of the Organisation for Security Co-operation in Europe and its upcoming EU presidency provide valuable platforms for the State to play a constructive role in international relations.

In a similar vein, the declaration accepting the compulsory jurisdiction of the ICJ not only enhances our reputation as a State committed to the rule of law in international affairs but also marks a modest and important exercise of Irish sovereignty on the international stage; much as it did, in different circumstances, in 1929.

David Fennelly, a practising barrister, recently completed a PhD in international law at Trinity College Dublin.